Law Commons^™

Symposium: Liquidating Elector Discretion, Rebecca Green

Popular Media

No abstract provided.

The Blind Leading The Deaf: An Investigation Of The Inconsistent Accommodations The Justice System Provides To People Who Are Deaf, Elizabeth Pindilli

William & Mary Journal of Race, Gender, and Social Justice

Historically, and to this day, people with disabilities have not been considered capable of determining their own needs. Instead, the general population has taken it upon themselves to dictate what accommodations they shall receive. This becomes particularly problematic for the deaf community when interacting with the criminal justice system, where a lack of communication is synonymous with a lack of justice. In this situation, the state should defer to the individual’s understanding of their needs, or carry the burden of proving that another accommodation is equally effective.

Reintegration Of Female Rape Survivors: The Overlooked Priority Of Transitional Justice In The Face Of Mass Wartime Rape, Layla Abi-Falah

William & Mary Journal of Race, Gender, and Social Justice

While mass wartime rape has become a core characteristic of modern armed conflict, transitional justice mechanisms have continuously failed to bring about successful achievement of justice, reconciliation, and truth for female survivors. The abuse, exile, and humiliation of large numbers of female rape survivors by their families and communities leaves entire societies destabilized and susceptible to prolonged instability and state failure, thus obstructing attempts by transitional justice mechanisms to usher in long-lasting peace and stability. To achieve more successful post-conflict reconstruction, transitional justice mechanisms situated in the aftermath of wars marked by mass rape must first focus on the reintegration …

Disaggregated Discrimination And The Rise Of Identity Politics, George Rutherglen

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Towards A Transnational Critical Race Theory In Education: Proposing Critical Race Third World Approaches To Education Policy, Steven L. Nelson

William & Mary Journal of Race, Gender, and Social Justice

Scholars have applied Critical Race Theory in both domestic and international contexts; however, a theory on the transnational role of race and racism in education policy has not emerged. In this Article, I borrow from the tenets of Critical Race Theory (CRT) and Third World Approaches to International Law (TWAIL) to formulate Critical Race Third World Approaches to Education Policy (TWAEPCrit). In constructing this theory, I argue that Black Americans are in practice and lived experience treated as third world citizens, even as they reside in the United States. I prove the third world status of Black peoples in the …

The Convention For The Safeguarding Of The Intangible Cultural Heritage (Csich) And The Control Of Indigenous Culture: A Critical Comment On Power And Indigenous Rights, Jonathan Liljeblad

William & Mary Journal of Race, Gender, and Social Justice

The Preamble of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH) recognizes the connection between indigenous peoples and intangible cultural heritage. The convention indicates that part of its mission is to protect the intangible cultural heritage of indigenous peoples against the processes of globalization and social transformation. The convention, however, has been critiqued for the manner in which it attempts to manage intangible cultural heritage, with critics charging that the convention fosters a power structure that favors states and thereby threatens to marginalize indigenous peoples from control over their own cultures. Such criticism raises a question …

The Website Accommodations Test: Applying The Americans With Disabilities Act To Websites, Ashley Cheff

William & Mary Journal of Race, Gender, and Social Justice

In 2017, 814 lawsuits were filed alleging discrimination under the Americans with Disabilities Act (ADA) due to website inaccessibility, up from 262 in the previous year. Beginning in July 2010, the federal Department of Justice (DOJ) considered issuing regulations under ADA Title III related to website accessibility. However, no changes have been made to date, leaving courts split over whether websites constitute places of public accommodation via the ADA. Dispositive to some jurisdictions’ holdings is whether a website has a nexus to a physical place, which may lend toward viewing the site as a public accommodation. Other jurisdictions provide that …

William & Mary Law School Clinic News (Spring), William & Mary Law School

William & Mary Law School Clinical Program Newsletter

No abstract provided.

Brief Of First Amendment Scholars As Amici Curiae In Support Of Petitioner, Tabatha Abu El-Haj, Timothy Zick, Hyland Hunt

Briefs

No abstract provided.

Associations And Cities As (Forbidden) Pure Private Attorneys General, Heather Elliott

William & Mary Law Review

The Supreme Court interprets Article III’s case-or-controversy language to require a plaintiff to show injury in fact, causation, and redressability. A plaintiff who meets that tripartite test has standing to sue and thus a personal stake in pursuing the litigation. Accordingly, in Sierra Club v. Morton, the Supreme Court prohibited pure private attorneys general: litigants who would sue without the requisite personal stake. This limitation extends to organizations. They, too, must show standing on their own account or, under Hunt v. Washington Apple Advertising Commission, identify a member with Article III standing and show how the lawsuit is germane to …

Telemedicine And Malpractice: Creating Uniformity At The National Level, Tyler D. Wolf

William & Mary Law Review

Picture this: an elderly gentleman living alone, isolated in a rural, midwestern locale. One day, this elderly gentleman awakes to find a distinct rash forming on his chest. The nearest doctor capable of performing an examination is located over a hundred miles away, and this man has not driven more than ten miles in twenty years. Shambling into his living room, the elderly man logs onto his computer and begins typing. Within twenty minutes he is videoconferencing with a doctor who examines the rash remotely and makes a diagnosis.

Through advances in telemedicine, the scenario described above is becoming an …

We Are All Growing Old Together: Making Sense Of America's Monument-Protection Laws, Zachary Bray

William & Mary Law Review

Monuments and the laws that protect them divide Americans today as never before. American attitudes toward monuments have always been a blend of affection, insecurity, and suspicion. But Americans are now more invested in the built and natural monuments that surround us: to be for, or against, protecting certain monuments has now become a shorthand for one’s stance on a host of cultural and political issues. These changing attitudes have thrown American monument-protection laws into sharp relief. And many local, state, and federal legislators and executive officials have taken advantage of this opportunity to exploit America’s patchwork of monument-protection laws, …

Modernizing The Bank Charter, David Zaring

William & Mary Law Review

The banking charter—the license a bank needs to obtain before it can open—has become the centerpiece of an argument about what finance should do for the rest of the economy, both in academia and at the banking agencies. Some advocates have proposed using the charter to pursue industrial policy or to end shadow banking. Some regulators have proposed giving financial technology firms bank charters, potentially breaking down the traditionally high walls between banking and commerce. An empirical survey of chartering decisions by the Office of the Comptroller of the Currency suggests that chartering is best understood as an ultracautious licensing …

Privacy Or The Polls: Public Voter Registration Laws As A Modern Form Of Vote Denial, Audrey Paige Sauer

William & Mary Law Review

On May 11, 2017, President Donald J. Trump signed an executive order establishing the Presidential Advisory Commission on Election Integrity (PACEI), with the mission to “study the registration and voting processes used in Federal elections.” Pursuant to this mission, Vice Chair of the Commission, Kansas Secretary of State Kris Kobach, sent out letters to state election officials soliciting all “publicly available voter roll data,” including all registrants’ full first and last names, middle names or initials, addresses, dates of birth, political party, last four digits of Social Security numbers if available, voter history from 2006 onward, information regarding any felony …

Artificial Stupidity, Clark D. Asay

William & Mary Law Review

Artificial intelligence is everywhere. And yet, the experts tell us, it is not yet actually anywhere. This is because we are yet to achieve artificial general intelligence, or artificially intelligent systems that are capable of thinking for themselves and adapting to their circumstances. Instead, all the AI hype—and it is constant—concerns narrower, weaker forms of artificial intelligence, which are confined to performing specific, narrow tasks. The promise of true artificial general intelligence thus remains elusive. Artificial stupidity reigns supreme.

What is the best set of policies to achieve more general, stronger forms of artificial intelligence? Surprisingly, scholars have paid little …

Trash Talk: An Exploration Of The Problem Of Marine Debris And Some Virginia-Specific Solutions, Elizabeth Pindilli

Virginia Coastal Policy Center

In an effort to address the problem of marine debris, the Virginia Coastal Zone Management Program (Virginia CZMP) undertook a planning process that resulted in the Virginia Marine Debris Reduction Plan (VMDRP) in 2014. In light of the policy issues raised in the VMDRP, this paper will explore the issue of marine debris and some possible solutions that can be pursued in Virginia.

This abstract has been adapted from the author's introduction.

Protecting Water Quality In Virginia: Recommendations To Combat Sea Level Rise And Increased Storm Events, Madhavi Kulkarni

Virginia Coastal Policy Center

Impairment of Virginia waters is tied to coastal storm hazards and sea level rise because excess floodwaters are contaminated by flood-exposed industrial and residential facilities, and these toxic floodwaters flow into the state’s water bodies. In Virginia, thousands of industrial facilities can potentially be subjected to the effects of stormwater flooding, hurricane storm surge, and sea level rise, in turn affecting water quality. Failing or unmaintained septic systems also pose a major threat to the quality of Virginia waters that increases with recurrent inundation by flood waters. A combination of changes to law and policy and investment in infrastructure are …

Ocean Of Uncertainty: Regulatory Barriers To Multiple Uses In Federal Waters, Kacie Couch, Tristan Griner

Virginia Coastal Policy Center

The potential for coexisting uses in offshore waters is great, but regulatory framework and federalism concerns exist that prevent zoning the oceans to allow for coexisting uses to reach their full potential. This paper seeks to anticipate and expand upon the potential benefits, consequences, and unknown variables in future development of offshore wind mixed use zones in federal waters off the coast of Virginia. Part I provides a brief introduction to offshore wind, offshore aquaculture, and the current regulatory framework that governs each of those ocean uses. Part II takes a deep dive into attempts to simplify regulatory oversight of …

Planning For A Managed Retreat: Moving In A New Direction, Caitlin Parry, Michael Heard Snow, Ryan Franklin

Virginia Coastal Policy Center

Climate change is altering the United States’ coastline in both subtle and extreme ways. The threat is especially pressing in the Commonwealth of Virginia, which is experiencing sea levels rising faster than the global average. As global sea level rise continues to increase, coastal communities across the country must make difficult decisions about their futures. Instead of waging an endless war with the tide, one option for them to consider is the process of managed retreat, which provides a long-term solution by relocating communities away from vulnerable areas. Low to moderate income communities face a variety of additional social and …

Closing Roads Due To Increased Flooding: Potential Liability Issues In Virginia, William Howieson, Michael Tentilucci

Virginia Coastal Policy Center

No abstract provided.

Carbon Market Opportunities In Virginia: Eelgrass, Marshes, Soils, And Forests, Imani Y. Price

Virginia Coastal Policy Center

Carbon sequestration is the storage and capture of carbon dioxide from the atmosphere. Preserving carbon sequestering sources helps mitigate climate change. Eelgrass, marshes, soils, and forests all sequester carbon. Unfortunately, they are vulnerable to climate change and human development. This paper examines how these sources of carbon sequestration can be incorporated into Virginia’s climate change policies, including the creation of a carbon market. Among other aims, a carbon market would incentivize the preservation and restoration of these species, providing important environmental and economic benefits. The first section of this paper identifies several sources of carbon sequestration, as well as their …

Building Towards A Resilient Virginia: Using C-Pace Financing To Improve The Resiliency Of Commercial Buildings, Jessica Kraus, Cesare Piermarini

Virginia Coastal Policy Center

When discussing how to combat problems caused by climate change and rising sea levels, the focus is often on developing and using alternative sources of clean energy. However, while slowing climate change is a worthy goal, it is too late to prevent climate change impacts in many areas in Virginia. Vulnerable flood zones all over the state are already being inundated with periodic flooding. This flooding causes extensive damage to commercial structures in the area. For example, it is estimated that Hurricane Florence alone caused between $200 million and $1 billion in flood damage in Virginia. Commercial property owners can …

Let The Buyer Beware: A Comparison Of Flood-Related Real Estate Disclosure Laws Of Virginia And Other States, Emily Snyder, Clay Kulesza

Virginia Coastal Policy Center

This white paper examines the state of flood disclosure laws for residential real estate transactions in Virginia and compares them to those of other states that have much more rigorous disclosure laws. Part II explores the history behind Virginia’s current “buyer beware” laws and examines previous attempts at establishing stricter real estate disclosure laws surrounding “special flood hazard areas”. Part III surveys a number of disclosure laws from other states that have successfully required sellers to disclose the risk of flooding in some capacity, and examines the events or circumstances that led to the enactment of those laws. Finally, Part …

An Emerging Containment Of (Legal) Concern: Pfas Legal Issues At The State And Federal Level, Michael S. Heard Snow, Conor M. Jennings

Virginia Coastal Policy Center

Per- and polyfluoroalkyl substances, or PFAS, are a class of man-made industrial chemicals that have been widely used in a variety of ways, primarily in water-resistant coatings and fire-fighting foam. Their widespread use has led to broad contamination threats to human drinking water sources, including surface and groundwater. As a result, they are an emerging contaminant of concern that are swiftly turning into a global health threat on the forefront of regulatory and policy debates. PFAS have been detected in both aquatic life and humans, and research is increasingly clear that there are concrete health risks to excessive exposure. Currently …

Underwriting Crowdfunding, Darian M. Ibrahim

Faculty Publications

Crowdfunding has more in common with an initial public offering (IPO) than may be readily apparent. Both are coordinated sales of securities to public investors (in crowdfunding's case, the "crowd"). Both rely on disclosure to mitigate information asymmetries between a company and its investors. Yet IPOs protect investors better for two reasons. First, companies undertaking an IPO have significant track records to disclose, unlike nascent startups. Second, IPOs are underwritten, meaning a reputational intermediary vouches for them.

This Essay considers applying underwriting to Regulation Crowdfunding (Regulation CF) to allow crowdfunding to mimic an IPO. It tackles questions such as: Who …

Keeping Ai Under Observation: Anticipated Impacts On Physicians' Standard Of Care, Iria Giuffrida, Taylor Treece

Faculty Publications

As Artificial Intelligence (AI) tools become increasingly present across industries, concerns have started to emerge as to their impact on professional liability. Specifically, for the medical industry--in many ways an inherently "risky" business--hospitals and physicians have begun evaluating the impact of Al tools on their professional malpractice risk. This Essay seeks to address that question, zooming in on how AI may affect physicians' standard of care for medical malpractice claims.

Were Justices Lawyers?, Thomas J. Mcsweeney

Popular Media

No abstract provided.

Ace In The Hole: The Epa's Proposed Affordable Clean Energy Rule; Have Your Coal And Burn It Too, Cy M. Hudson

William & Mary Environmental Law and Policy Review

No abstract provided.

Out Of Sight, But Not Out Of Mind: Reevaluating The Role Of Federalism In Adequately Regulating Concentrated Animal Feeding Operations, Madhavi Kulkarni

William & Mary Environmental Law and Policy Review

No abstract provided.

The Deficiencies Of The European Union's Regulatory System Governing The Classification Of Endocrine Disrupting Chemicals, Elissa Sanford

William & Mary Environmental Law and Policy Review

No abstract provided.